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Judgment
Rajiv Sharma, J.
Heard learned Counsel for the parties.
Brief facts of the case are that before the consolidation operation, in basic year, plot No. 220 consisted of two subdivisions, i.e. 220/1 area 1100 and plot No. 220/2 area 4100. During the consolidation operation, Alim Khan, father of the petitioner filed objections under Section 9 of the Act in respect of plot No. 220/2 area 4100 with the allegations that the plot in dispute is uncultivated land over which trees of Tad, Khajoor, Babool, Neem, Kait etc. are standing and is in his possession. One Ram Lakhan also filed objections claiming Sirdari rights in respect of the same land. The Consolidation Officer rejected the objections of the petitioner by the order dated 13.9.1973. Being aggrieved, Alim Khan filed an appeal No. 155 against the aforesaid order of Consolidation Officer dated 13.9.1973 before the Assistant Settlement Officer, Consolidation, who, in turn, partly allowed the appeal filed by Alim Khan that out of total area of plot No.220 4100, Alim Khan, S/o Doman be recorded over 3 biswa land towards North as Sirdar and so far the remaining area 470 was concerned, claim of Alim Khan was rejected.
Against the order passed by the Assistant Settlement Consolidation Officer, two revision Nos. 3309 and 3310 were filed one by Alim Khan and the other by Ram Lakhan. The Deputy Director of Consolidation, vide order dated 9.10.1980, partly allowed the Revision No. 3309 of Alim Khan and remanded the case to the Assistant Settlement Officer, Consolidation to decide afresh in respect of remaining area 470 of plot No. 220 and dismissed the Revision No. 3310 filed by Ram Lakhan.
Being aggrieved, Ram Lakhan filed Writ Petition No. 11965 of 1981 in this Court challenging the order dated 9.10.1980. This Court dismissed the said writ petition by means of the order dated 16.11.1998 with the finding that the order passed by the Deputy Director of Consolidation is only a remand order, therefore, the writ petition is not maintainable. However, this Court did not record, any finding with regard to the forgery alleged to have been committed by Ram Lakhan.
On remand, the Assistant Settlement Officer, Consolidation dismissed the appeal filed by Alam Khan vide order dated 22.3.2002. Alim Khan filed Revision against the order passed by the Assistant Settlement Officer Consolidation. By means of the order dated 5.4.2005, the Deputy Director of Consolidation dismissed the aforesaid Revision filed by Alam Khan.
Before the appeal authority, It has been urged that part of the said land belongs to Kabristan (burial ground) and as such, Ram Lakhan, whose name was recorded in 1355 Fasli onwards, claims his right. It has further been asserted that the said entries in the name of Ram Lakhan, who is Peon in Tehsil, had made certain cuttings in the revenue record and it is only thereafter, he got his name entered.
Learned Counsel for the petitioner has submitted that during the pendency of the writ petition before the High Court, the records of Assistant Settlement Officer and Consolidation Officer were destroyed, as such the Appellate Court proceeded on the basis of record of the writ petition and the papers filed by Ram Lakahan. He also pointed out that the Settlement Officer, Consolidation himself made spot inspection and prepared inspection memo dated 21.12.2000. In this inspection report, he indicated that the plot in dispute is updown (uneven) in the shape of ''Bheeta'' with trees. As the existence of the house of the petitioner and graveyard [Kabristan] over the land and part of the land being Khalihan was not mentioned in the inspection report, he filed objections in respect of the omission of the said facts.
Counsel for the petitioner submits that without considering the material on records placed by the petitioner and complying the directions of the Deputy Director of Consolidation, dismissed the appeal by means of the order dated 22.3.2002. Against the order dated 22.3.2002 passed by the respondent No.2/Assistant Settlement Officer (Consolidation), the petitioner filed revision before the respondent No.1/Deputy Director of Consolidation, who, in turn, dismissed vide order dated 5.4.2005.
Supporting the impugned orders, learned Counsel appearing for the respondents submitted that they are passed on evidence on record. Further, he submitted that the name of Alim Khan, predecessor of the petitioner was never recorded in the capacity of possession. The Assistant Settlement Officer, Consolidation further held that the report filed by the Consolidator dated 6.1.2001 is clearly shows that Ramayan Singh was in cultivatory possession and has sown crops over the plot in dispute. The Assistant Settlement Officer, Consolidation further held that there was no graveyard on spot, therefore, the Assistant Settlement Officer, Consolidation has rightly rejected the appeal filed by Alim Khan on 22.3.2002. Thereafter, the revision which was filed before the Revisional Authority has rightly been dismissed. Therefore, the impugned orders do not suffer from any illegality or infirmity.
Refuting the allegations made by the learned Standing Counsel, learned Counsel for the Petitioner submits that the order of Consolidation Officer was already set aside and the orders dated 22.3.2002 and 5.4.2005 passed by the Assistant Settlement Officer (Consolidation) and the Deputy Director of Consolidation against the direction of respondent No.1 dated 9.10.1980 in remand order have rightly been challenged in the writ petition.
After hearing counsel for the parties, I am of the opinion that the Appellate Authority, without considering the directions contained in the remand order, has dismissed the appeal. Thereafter, the Revisional Authority also affirmed the order passed by the Assistant Settlement Officer (Consolidation).
On 22.5.2005, this Court passed the stay order which reads as under:
"Argument is that the appellate authority has decided the matter without keeping in mind the direction as contained in the order of remand and on various other grounds as taken in the writ petition. The impugned orders are legally vitiated.
In view of the aforesaid, in the meantime, it is directed that none of the parties will cut away the trees which is said to be existence over the land in dispute.
...."
Further, the points raised in the remand order dated 9.10.1980 for reconsideration of the matter, have not been considered. As this Court has not set aside the order dated 9.10.1980, the said order attains finality and the points raised in the remand order have to be considered. But in spite of adjudicating the matter in terms of the remand order, the appeal was dismissed and without looking into the said fact, the revision filed before the Revisional Authority was also dismissed. Therefore, the impugned orders suffers from illegalities and infirmities, which are liable to be set aside.
Considering the peculiar facts and circumstances of the case, the order dated 22.3.2002 passed by the Assistant Settlement Officer (Consolidation) and the order dated 5.4.2005 passed by the Deputy Director of Consolidation are set aside. The matter is remanded to the Assistant Settlement Officer (Consolidation) to decide the appeal, after affording opportunity of hearing to the affecting parties, in accordance with law, within a maximum period of six months, from the date of presentation of a certified copy of this order. Till disposal of appeal, the opposite parties are restrained from cutting the standing green trees over the plot in question.
In view of above, the writ petition is allowed.